Every cog in the CJ system introduces an increased chance of error or *some* sort of bias, leaving us with an end result that the prison population doesn't match up to what a representative sample of 2 million people should look like.
If the justice system were to take into account a defendants race, or cultural status, or the like at sentencing time, would this lead to a more representative incarceration rate? Or is this already the way courts and judges dole out sentences?
I have the misfortune of viewing the justice system on two very different levels. First, and most common, I see and read the statistics that seem to show how the poor, minority status defendants end up with a public defender who doesn't care, thus receiving a prison term, while well-to-do white males in their 40's with the fancy lawyers get the proverbial slap on the wrist. This is accepted by most as the way things occur, and appears to be backed up by the incarceration statistics. However, those statistics go flying out the window when someone you know, like a family member or close friend, gets caught in the wheels of justice.
My brother, Tony, is a white male, 44 years of age, upper middle class working type, with no prior criminal record. In October of 2002, while driving home from work, he decided on a whim to stop at a local restaurant/bar to watch Monday Night Football and drink a few beers. Bad decision. Tony is and never has been a drinker, only drinks beer, nothing stronger, and gets buzzed on just one or two. In other words, he should not have been driving even if he consumed only 1 beer, let alone the 6 or 7 he was later estimated to have had while watching the game. So, the game ends, Tony jumps into his brand new pick-up truck and heads south toward home, 10 miles away, on the local two lane highway. This is the last thing he remembers of that night.
For the family of the woman who was driving north that same night on the same road at the same time as Tony, and for my family, that is when all of us became first hand participants in the justice system. According to the police reports, Tony's truck went across the northbound lane, onto the northbound shoulder, and as a northbound car approached, Tony's truck started to cross back towards the southbound lane. The two vehicles, each traveling 65 mph, crashed head on without either driver aware of the impending crash, as no skid marks were found, nor was any evidence of brakes being applied ever found.
The woman driving in the northbound lane was killed instantly, while Tony, as happens in so many crashes involving drunk drivers, somehow survived the impact, and although suffering critical injuries, has now recovered to a point where he can function normally, i.e.. he has the use of his arms and legs, and is able physically to return to work.
We all read and hear about innocent victims being killed by idiotic drunk drivers. We all express our anger towards the drunk, and sympathy for the victim's family. So laws are passed that supposedly deter people from driving drunk. In Tony's case, which occured in the state of Hawaii, the statute covering his crime was 'Vehicular homicide", a Class C felony, described as driving a vehicle while legally intoxicated and causing the death of another person. This is exactly what Tony had done. Yet the case took on different meaning for the DA, as the victim in the case, Carol, was a loving wife and mother of 10 children.
So the DA does not file charges of Vehicular Homicide against Tony. Along with the lesser charges of DUI, innattentive driving, and crossing the double yellow line, the DA instead charges Tony with the crime of Manslaughter, a class B felony. Yes the same Manslaughter charge that murderers sometimes plea down to.
Without question, Tony was guilty of driving drunk, and causing the death of a woman, leaving her husband and ten children without their mother. He deserves to be punished for his actions, although not intentional, he must take responsibility for getting behind the wheel of a vehicle drunk.
So how did the system mete out justice in Tony's case?
Tony had no prior criminal record. He hired an upscale attorney. He is a white, upper middle class working male. Before the case was brought to court, and after Tony's recovery for 3 months in the hospital, he voluntarily went into an alcohol recovery program. He has not drank since the tragic day. So, in court, the DA sticks to his guns and does not offer a plea of any kind. The Manslaughter charge stays. Tony and his lawyer, using their money and status as white males, end up deciding to plead guilty.
Tony pleads guilty, not to a lesser charge, but guilty to Manslaughter. So my family is thinking that Tony's lawyer knows what he is doing, after all he is guilty, but pleading guilty to the highest charge without some kind of sentencing agreement in hand? On sentencing day, all family members are present, and some speak before sentencing. The probation department's report on Tony has been submitted and read by the judge. Tony stands in court, remorseful and apologetic, admitting his guilt and understanding he deserves punishment.
Now I read all the time about rapists and murderers being convicted, sometimes for the second time, receiving sentences sometimes as low as 3 to 5 years. The average sentence in the US for conviction of 2nd degree murder is 15 years, serving 7 years. The average sentence for rape is 6 years, serving 3. So, with all attention to the judge, he sentences Tony to 20 years. A mandatory 20 year sentence. Boy, the hands of justice turned back time in this case. Or am I wrong? Where are all the cries of severe punishment because Tony is an upper middle class white male with a big-wig attorney?
So I take the overall statistics with a huge grain of salt. Once something hits home like this, all that matters is the individual case, at least to those that the case has an actual affect on. Statistical pundits, purveyors of diversity, and all the ACLU lawyers on the planet will not be knocking down the walls to break Tony's story to you.